Madhya Pradesh High Court
Mohammad Aslam vs The State Of M.P. Judgement Given By: ... on 20 February, 2014
Author: N. K. Gupta
Bench: N. K. Gupta
1
Criminal Revision No.1887/1999
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH
PRESENT :
HON'BLE SHRI JUSTICE N. K. GUPTA
CRIMINAL REVISION NO.1887/1999
Mohd. Aslam
Vs.
State of M.P.
........................................................................................
Shri F. Usmani, counsel for the applicant.
Shri Ajay Tamrakar, panel Lawyer , counsel for
the State.
........................................................................................
ORDER
(Delivered on the 20th day of February, 2014) Vide judgment dated 2.8.1999 the applicant was convicted for offence punishable under sections 457, 380 of I.P.C and sentenced with three years rigorous imprisonment with fine of Rs.1000/- for each count by the learned JMFC, Jabalpur (Shri P. K. Sharma) in Criminal Case No.704/1996. In Criminal Appeal No.73 of 1999 the learned Additional Sessions Judge, Jabalpur vide judgment dated 17.12.1999 dismissed the appeal filed by the applicant in toto. Being aggrieved with the aforesaid judgments the applicant has preferred the present revision.
2. The facts of the case in short are that the complainant Vinod Kumar Naidu (PW3) had a Armory Shop near Victoria Hospital, Jabalpur. In the midnight of 6th and 2 Criminal Revision No.1887/1999 7th November, 1995 a burglary took place in his shop and one 12 bore gun along with 400 cartridges were stolen. The complainant Vinod Kumar Naidu lodged an FIR Ex.P/2 at Police Station Omti, Jabalpur on the next day. After some time, he had informed that one 12 bore gun having long barrel was received by him for repairing and that gun was also stolen in the burglary. On 4.2.1995, the accused Raju @ Riaz was arrested and 100 live cartridges were seized from him. Raju @ Riaz gave a memo under Section 27 of the Evidence Act that he and the applicant Aslam caused that burglary in the shop of Vinod Kumar Naidu and took two 12 bore guns and 400 cartridges. Out of them, he had shortened a bore of one gun and that gun and cartridges he kept at a particular place whereas, he gave one 12 bore gun having short barrel and 290 cartridges to Aslam. Consequently, the recovery was made. Again on 5.2.1996, Juber, brother of the applicant Aslam, was arrested and 50 cartridges were recovered from him by seizure memo Ex.P/1. Juber has also stated under Section 27 of the Evidence Act before the seizure that 50 cartridges were given to him by the applicant Aslam. On 6.2.1996, Shri Salim Khan, S.H.O., Ghamapur was intimated by informers and he caused a raid along with the witnesses. The applicant was caught with an "attaichi" in which a gun of 12 bore was kept after its folding and also 37 live cartridges and one used cartridge were found. Shri Salim Khan seized 3 Criminal Revision No.1887/1999 those articles and a fresh case of offence under Section 25/27 of the Arms Act was registered. Also the copy of the seizure memo and arrest memo was directed to Police Station, Omti because seized gun was the same which was stolen from the shop of Vinod Kumar Naidu. After due investigation a charge sheet was filed.
3. The applicant abjured his guilt. He did not take any specific plea in the case and therefore, no defence evidence was adduced. The learned JMFC after considering the evidence adduced by the prosecution convicted and sentenced the applicant as mentioned above whereas the appeal filed by the appellant was dismissed in toto.
4. I have heard the learned counsel for the parites.
5. In the present case, a concurrent finding is given by both the Courts below and therefore, that finding should not be disturbed in the revision unless it is necessary to disturb. In the present case, recovery of a gun and cartridges from the applicant was done under unnatural circumstances. In the present case, there was presence of three accused, out of that few cartridges and one gun were given to the applicant Aslam by the accused Raju @ Riaz and the applicant Aslam was made accused of burglary because of memo under Section 27 of the Evidence Act given by Raju @ Riaz on 4.2.1995. According to the accused Juber, 50 cartridges were given to him by his 4 Criminal Revision No.1887/1999 brother and such cartridges were recovered from him. The memo under Section 27 of the Evidence Act given by the accused Juber was marked as Ex.P/7. He told about 50 cartridges and 50 cartridges were recovered from him and therefore, his memo was admissible only up to the extent that he kept 50 cartridges at a particular place. The portion in which he had stated that the cartridges were given by the applicant Aslam was not admissible and therefore, no prosecution evidence was admissible as given by the co-accused Juber and therefore, memo under Section 27 of the Evidence act given by the accused Juber and consequential seizure does not affect the case of the applicant.
6. Second memo under Section 27 of the Evidence Act was given by the accused Raju @ Riaz. He gave two portions in his statement, one was related to him and second was related to the applicant. So far as his confession that he and Aslam had committed theft is concerned, it is not admissible in the evidence because very little portion of the confessional statement of Raju @ Riaz could be admitted under Section 27 of the Evidence Act. Raju @ Riaz has stated in his memo Ex.P/3 that out of two guns, he kept a 12 bore gun of a long barrel and he shortened the barrel of that gun kept by him and consequently, the barrel of the gun seized from the accused Raju @ Riaz along with some cartridges was found 5 Criminal Revision No.1887/1999 shortened and therefore, that portion of memo under Section 27 of the Evidence act was admissible against the accused Raju @ Riaz.
7. The second portion of the memo under Section 27 of the Evidence Act given by Raju @ Riaz was that, that he gave one short barrel 12 bore gun along with 290 cartridges to the applicant Aslam but, it is unfortunate that thereafter, no recovery from Aslam was done by the Investigation Oficer Shri H. L. Guru (PW5). Shri Guru did not show any reason that when the memo under section 27 of the Evidence Act given by Raju @ Riaz was prepared on 4.2.1995 and recovery was made from Riaz on the same very day then as to why he could not recover the gun and cartridge with the accused Aslam. He could not show about his overt acts done in arresting the applicant or getting the arms recovered from him. Under such circumstances, the recovery done from the applicant was not in the consequence of memo under Section 27 of the Evidence Act.
8. The statement given by SHO, Shri Salim Khan (PW6) are not trustworthy. The witnesses, of the seizure memo Ex.P/4 did not support the prosecution's case. Witnesses Suraj was not examined whereas Arjun (PW4) has turned hostile. It is to be seen as to whether the testimony of S.H.O. Salim Khan (PW6) can be believed. Shri Salim Khan has stated that he received an information from 6 Criminal Revision No.1887/1999 informer and thereafter, he went to a place "Sarkari Kua Ke Pas, Police Station, Ghamapur" and seized a gun which was kept in an "attaichi" and 37 live cartridges along with one used cartridge. Shri Salim Khan prepared a case under Section 25/27 of the Arms Act and copy of the seizure memo etc. were transmitted to the Police Station, Omti. Since the serial number of the gun given by Sujata Arms Company engraved on the seized article was the same which was stolen from the shop of Vinod Kumar Naidu and therefore, gun was shown to Vinod Kumar Naidu in Malkhana of Police Station and he found that the gun was of his shop and therefore, a case was filed against the accused/applicant. Since the complainant Vinod Kumar mentioned the serial number and make of the gun in the FIR and a gun having the same serial number and of same make was recovered and therefore, it was a stolen property. However, burglary took place on 7.11.1995 whereas, recovery was made in February, 1996. Therefore, in lapse of time, no presumption under section 114 of the Evidence act can be drawn that the applicant was a thief. According to the provisions of Section 114 of the Evidence Act, if any stolen property is found with anyone then it is especially presumed that either he was a thief or he had the stolen property.
9. As discussed above, it is mentioned that the gun was recovered from the applicant in consequence of memo under Section 27 of the Evidence Act given by the co- 7
Criminal Revision No.1887/1999 accused Raju @ Riaz and therefore, there was no reason to presume that the applicant was the person who committed the burglary and theft. At the most it can be presumed that, he had the stolen property and he could be convicted for offence under section 411 of the IPC only, if it is proved beyond doubt that the stolen property was found with the applicant. In that respect no identification was established by the Investigation Officer relating to 37 live cartridges recovered from the applicant. Vinod Kumar Naidu has stated that his stolen cartridges were prepared by factory Kirki and therefore, on each cartridge serial number was given with capital letter "F.K." which ends with the mark of year of their manufacturing. It is strange that Shri Salim Khan did not give the description of cartridges in seizure memo Ex.P/4 as the seized cartridges were of factory Kirki and there was a mark on each of the cartridge which begins with capital letter "F.K.". Under such circumstances, though the trial Court gave the entire articles to the complainant, it cannot be said that the cartridges found from the applicant in alleged seizure were the same which were stolen from the shop of complainant Vinod Kumar Naidu.
10. On the basis of the aforesaid discussion, the only point remains to consider is as to whether the stolen gun was recovered from the applicant Aslam or not. It is strange that Shri Guru (PW5) could not seize any fire arm or 8 Criminal Revision No.1887/1999 cartridge from the applicant. On the basis of the memo under Section 27 of the Evidence Act given by the co- accused Raju @ Riaz and no reason has been shown by Shri Guru, the Investigation Officer. It is mentioned in the seizure memo and arrest memo relating to the applicant that he was resident of a place which was in the jurisdiction of Police Station, Gohalpur. It is strange that Shri Salim Khan, SHO, Ghamapur had recovered a gun from the applicant which was found to be a stolen property. If the description of the seizure memo Ex.P/4 is perused then one "attaichi" was seized from the applicant on which a word "SAFARI" was painted. One folded gun was found in that "attaichi" but not in a bag and therefore, it would be apparent from the word used by Salim Khan that the gun was found in a trunk prepared by iron or aluminum sheet. If the applicant was residing in the area of Police Station, Gohalpur then he should have kept the "attaichi" at his residence. If he had kept that "attaichi" in a house within the jurisdiction of Police Station, Ghamapur then in recovery memo, it was required to be mention that the "attaichi" was found in a house within the jurisdiction of Police Station, Ghamapur. Shri Salim Khan did not mention in Ex.P/4 that the "attaichi" was recovered from any house and therefore, it shall be presumed from the seizure memo Ex.P/4 that the applicant was taking that "attaichi" with him and he was passing near "Sarkari Kuan, Ghamapur". If 9 Criminal Revision No.1887/1999 someone has an "attaichi" in which folded gun is kept then such "attaichi" could be taken either on a handcart or in an auto rickshaw. Such "attaichi" could not be taken by the applicant on his head or shoulder. Shri Salim Khan did not mention about the fact as to how the applicant kept the "attaichi" at the time of seizure.
11. The seizure of "attaichi" from the applicant done by SHO, Ghamapur, Shri Salim Khan appears to be unnatural. If a person knows that a firearm cannot be exhibited at a public place and he kept that fire arm in an "attaichi" then there was no interest for that person to move with such an "attaichi" in a public place. Looking to the conduct of Shri Salim Khan and Shri Guru, it appears that they shared to give partial credit of recovery of weapons and cartridges stolen from the Armory Shop between Shri Guru and Shri Salim Khan otherwise, there was no reason to Shri Guru in not proceeding with the memo under Section 27 of the Evidence Act given by the co-accused Raju @ Riaz and there was no reason so that the applicant who, was resident of an area which was in the territory of Police Station, Gohalpur would have taken an "attaichi" of gun and cartridges basically without any hand card or auto rickshaw and was passing through a locality within the jurisdiction of Police Station, Ghamapur.
12. On the basis of the aforesaid discussion, where the independent witnesses did not support the seizure done 10 Criminal Revision No.1887/1999 by Shri Salim Khan, conduct of Shri Salim Khan was doubtful. Nobody is expected to transport an "attaichi" of firearm from a public place without any vehicle or hand cart. Shri Salim Khan could not inform as and when he received the information from the informers and he did not file the copy of the Rojnamcha relating to his visit for the seizure. Under such circumstances, after considering the conduct of Shri Guru and Shri Salim Khan, the entire story of seizures comes in the cloud of doubt and the prosecution failed to prove beyond doubt that anything was recovered from the applicant by Shri Salim Khan. Possibility cannot be ruled out that the second gun was recovered from the co- accused Riaz and to create a new case against the applicant a memo under Section 27 of the Evidence Act was prepared by Shri Guru and thereafter, a gun was shown to be recovered from the applicant but, the manipulations done by Shri Guru and Shri Salim Khan indicate that a false case is created against the applicant. Hence the applicant cannot be convicted for offence punishable under Section 411 of I.P.C even.
13. On the basis of the aforesaid discussion, it would be apparent that it is a fit case in which re-appreciation of evidence is required because both the Courts below reached to a perverse conclusion by appreciating the evidence. The applicant could not be convicted for offence under Sections 457 and 380 of I.P.C because the 11 Criminal Revision No.1887/1999 presumption under Section 114 of the Evidence Act cannot be stretched in such a manner as stretched by both the Courts below. If seizure could be believed, then the applicant could be convicted for offence punishable under section 411 of I.P.C but, since recovery is doubtful therefore, the applicant is entitled to get the benefit of doubt and therefore, he could not be convicted for offence punishable under Section 411 of I.P.C. Hence, it is a case in which the revision filed by the applicant Aslam can be accepted and consequently, it is accepted. The conviction as well as the sentence directed by both the Courts below for offence punishable under sections 457 and 380 of I.P.C is hereby set aside. The applicant is acquitted from all the charges by giving him the benefit of doubt.
14. The applicant is in custody in compliance of the Court order dated 17.12.2013 and therefore, the office is directed to arrange for issuance of a release warrant so that he shall be released. He would be entitled to get the fine amount back, if he has deposited.
15. A copy of the order be sent to both the Courts below along with their records for information and compliance.
(N. K. GUPTA) JUDGE 20.2.2014 bina